Tran and Minister for Home Affairs (Migration)

Tran and Minister for Home Affairs (Migration) [2018] AATA 4454 (29 November 2018)
Division:GENERAL DIVISION
File Number: 2018/5269
Re:Hai Ly Tran
APPLICANT

AndMinister for Home Affairs
RESPONDENT

DECISION
Tribunal:Senior Member Theodore Tavoularis
Date:29 November 2018
Place:Brisbane

The decision under review is affirmed.
..........................[SGD]..............................................
Senior Member Theodore Tavoularis
CATCHWORDS
MIGRATION – non-revocation of mandatory cancellation of visa – expedited matter – where visa was cancelled under s 501(3A) – applicant did not pass character test – 12 month imprisonment – whether discretion in s 501CA to revoke mandatory visa cancellation should be exercised – considerations in Direction No 65 – applicant committed drug offences – applicant committed offences against the personal and property rights of others – applicant committed offences indicating refusal to submit to lawful authority – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth)
CASES
Afu v Minister for Home Affairs [2018] FCA 1311
Allan and Minister for Immigration and Border Protection [2016] AATA 1077
ETWK and Minister for Immigration and Border Protection [2017] AATA 228
Minister for Home Affairs v Buardomo [2018] FCAFC 151
Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Le and Minister for Home Affairs [2018] AATA 4126
SECONDARY MATERIALS
Ministerial Direction No. 65
Weapons Act 1990 (Qld)
Weapons Categories Regulation 1997 (Qld)
REASONS FOR DECISION
Senior Member Theodore Tavoularis
29 November 2018
INTRODUCTION

This is an application by Mr Hai Ly Tran (“the Applicant”) for review of a decision made by the delegate of the Minister for Home Affairs (“the Minister”) made on 31 August 2018 to not revoke the cancellation of his visa.
The Applicant is a citizen of Vietnam[1] who arrived in Australia on 13 November 1978[2] at the age of 16 months, and has lived and worked in Australia since that time. He has not departed Australia since arriving here. The Applicant’s visa was cancelled on 28 June 2017 by the Minister.[3] On 8 July 2017, the Applicant applied for this cancellation to be revoked.[4] On 4 September 2018, the Minister refused to revoke the cancellation of the subject visa”.[5] The Applicant appealed the revocation decision to this Tribunal on
[1] Exhibit R2, Section 501 G Documents, G02, Attachment AS: Personal details form, p. 187.
[2] Ibid, G02, Attachment AN: Movement records, p. 128.
[3]Ibid, G02, Attachment AO: Notice of Visa Cancellation, pp. 149 – 154.
[4] Ibid, G02, Attachment H: Revocation request, pp. 65 – 66.
[5]Ibid, G02, Notification fo decision not to revoke visa cancellation decision, pp. 11 – 13.
[6] Ibid, G01, Application for review, pp. 3 – 10.
13 September 2018.[6]
The matter was heard on 20 November 2018. For the reasons below, I have found that the Minister’s decision[7] was correct. The cancellation of the Applicant’s visa should not be revoked.
[7] Ibid, G02, Statement of reasons, pp 15 – 25.
ISSUES
The Applicant’s visa was mandatorily cancelled under s 501(3A) of the Migration Act 1958 (Cth) (“the Act”) on the grounds that he did not pass the character test as defined in
s 501(6)(a). Under s 501CA(4)(b), the Tribunal may revoke the mandatory cancellation of a person’s visa where:
(b)the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
If the Tribunal is satisfied of either ss 501CA(4)(b)(i) or (b)(ii), it must revoke cancellation.[8]
[8] Minister for Home Affairs v Buardomo [2018] FCAFC 151 at [21].
Thus, I must address two issues:
1. Whether the Applicant passes the character test as defined in s 501 of the Act; and
2. Whether there is another reason for the cancellation of the Applicant’s visa to be revoked.
I will address each of these issues in turn.
ISSUE 1: DOES THE APPLICANT PASS THE CHARACTER TEST?
The representative of the Minister contends that the Applicant does not pass the character test because he has a “substantial criminal record”, as defined in ss 501(6)(a) and 501(7)(c) – (d) of the Act.[9] The Applicant does not contest this, but it is nevertheless necessary to consider this issue.
[9]Exhibit R1, Minister’s Statement of Facts, Issues and Contentions (“SFIC”), p. 2, para [2];pp. 5 - 6, para [12].
It is helpful to set the relevant provisions out.
501 Refusal or cancellation of visa on character grounds
…
6For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by subsection (7)); or
…
7For the purposes of the character test, a person has a substantial criminal record if:
…
(c)the person has been sentenced to a term of imprisonment of 12 months or more; or
(d)the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more; …
Thus, the Applicant will be taken to have a substantial criminal record if he has either been sentenced to a single term of imprisonment of 12 months or more, or if he has been sentenced to multiple terms of imprisonment where the sum of those terms is 12 months or more.
Offending history
According to his National Police Certificate[10], the Applicant was first dealt with by lawful authority on 30 June 1997, when he was 20 years of age. The totality of his criminal history appears in the material.[11] My initial apprehension is that the Applicant’s history of criminal offending is more than sufficiently substantial to not be ignored and cannot, on any reasonable view, be regarded as anything other than serious. It is serious because it does not begin with what is commonly termed “low level” or “minor” offending in the form of misdemeanours or relatively minor regulatory breaches. The first entry in the history is one of assault occasioning bodily harm. One does not see a trajectory from minor offending into more serious offending. It is serious from its commencement and it remains serious throughout his 18 year offending history. The Applicant is now aged 41 years of age. It follows that his criminal history has been present for almost half his life, and certainly, for the overwhelming majority of his life as an adult.
[10] Exhibit R2, Section 501 G Documents, G02, Attachment A: National police certificate, pp. 32 – 38.
[11]Ibid; see also summary of the Applicant’s criminal history appearing in Exhibit R1, Minister’s SFIC, pp. 2 – 5, para [8].
Viewed as a whole, it is difficult to accept that the Applicant:
(a)has ever developed any respect or deference for lawful authority, be it in the form of criminal law enforcement or as the law relates to his visa status; and
(b)has ever fully appreciated and learned to respect the personal or property rights of others.
His history is suggestive of an individual who knowingly involves himself in activities and conduct that exposes him to risk – a custodial sentence or his visa - but then seeks to ameliorate that conduct be it in the form of submissions upon initial sentencing, or criminal law appeals to appellate courts, or, as we have now, an appeal to this Tribunal to, in effect, be allowed to remain in this country.
In short, the Applicant has appeared consistently before the criminal courts from the age of 20 years until August 2015 when he was aged 38 years. He has found himself before the criminal courts or was otherwise the subject of attention from the Minister as a direct consequence of his offending on:
Criminal law (and other) offending
·30 June 1997;
·24 September 1997;
·3 October 1997;
·6 October 1997;
·20 March 1998;
·17 April 2002;
·19 April 2002;
·23 January 2007;
·18 May 2007;
·9 October 2007;
·21 November 2007;
·23 February 2008;
·21 July 2008;
·25 September 2008;
·6 October 2008;
·14 October 2009;
·9 April 2010;
·17 May 2010;
·18 April 2013;
·23 July 2013;
·3 December 2013;
·29 April 2014;
·7 May 2014; and
·3 August 2015.[12]
Attention from the Minister
·10 June 2011 (Minister’s formal warning about possible cancellation of visa)[13];
·28 June 2017 (notification of visa cancellation pursuant to s 501(3A) of the Act)[14]; and
·4 September 2018 (refusal of the Minister to revoke visa cancellation)[15].
[12] Ibid, G02, Attachment A: National police certificate, pp. 32 – 38.
[13]Ibid, G02, Attachment AR: Notice of intention to consider cancellation, pp. 180 – 185.
[14] Ibid, G02, Attachment AO: Notice of cancellation, pp. 149 154.
[15]Ibid, G02, Notification of decision not to revoke visa cancellation decision, pp. 11 – 13.
There can be no question that the Applicant’s history of offending is indeed a serious one. The sentencing Courts have imposed significant custodial terms ranging from terms of one month to nine years. On the basis of the Applicant’s history of offending, I am satisfied he has a substantial criminal record for the purposes of s 501(7) of the Act. This is because he was sentenced to a term of imprisonment of more than 12 months. The time actually served by the Applicant is not material for present purposes. Consequently, pursuant to s 501(6) of the Act, the Applicant does not pass the character test. Thus, this “character test” ground cannot be used to enliven the Tribunal’s discretion to revoke the cancellation of the Applicant’s visa.
I will turn now to whether there is another reason to revoke this cancellation.
ISSUE 2: IS THERE ANOTHER REASON TO REVOKE THE CANCELLATION?
Introduction: the legal framework
Section 501CA(4) of the Act provides for a discretion to revoke the mandatory cancellation of a visa. In considering whether to exercise that discretion, the Tribunal is bound in accordance with s 499(2A) to comply with any directions made under the Act. In this case Ministerial Direction No. 65 (“the Direction”) applies. The Direction provides guidance for decision makers on how to exercise the discretion. Relevantly, it states that a decision-maker:
must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.[16]
[16] Direction No 65, para [7(1)(b)].
The considerations relevant in the context of a revocation decision appear in Part C of the Direction. Paragraph 13(2) of the Direction provides the three primary considerations that the Tribunal must take into account:
(e)Protection of the Australian community from criminal or other serious conduct;
(f)The best interests of minor children in Australia;
(g)Expectations of the Australian community.
Paragraph 8(1) of the Direction provides that decision-makers must take into account the primary and other considerations relevant to the individual case.
The other considerations which must be taken into account are provided in a non-exhaustive list in paragraph 14(1) of the Direction. These considerations are:
(a)International non-refoulement obligations;
(b)Strength, nature and duration of ties;
(c)Impact on Australian business interests;
(d)Impact on victims;
(e)Extent of impediments if removed.
Paragraph 6.3 of the Direction sets out a number of principles that should inform the decision maker’s consideration. Briefly stated, they are as follows:
(i)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia;
(ii)The Australian community expects that the Australian government can and should refuse entry to non-citizens or cancel their visas, if they commit serious crimes in Australia or elsewhere;
(iii)A non-citizen who has committed a serious crime should generally expect to be denied the privilege of coming to, or forfeit the privilege of staying in, Australia;
(iv)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious that any risk of similar conduct in the future is unacceptable;
(v)Australia has a low tolerance for any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time;
(vi)Australia has a low tolerance for any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people be allowed to come to, or remain permanently in Australia; and
(vii)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations for determining whether to exercise the discretion.
Primary Consideration A: Protection of the Australian community from criminal or other serious conduct
The Tribunal must have regard to the protection of the Australian community from criminal or other serious conduct. Paragraph 13.1(2) of the Direction further provides that decision makers should also give consideration to:
(a)The nature and seriousness of the non-citizen’s conduct to date; and
(b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
I address each of these elements in turn.
The nature and seriousness of the Applicant’s conduct to date
Paragraph 13.1.1 of the Direction provides a list of factors to be considered in determining the nature and seriousness of a non-citizen’s criminal offending or other serious conduct. It relevantly (for present purposes) includes the following:
(a) The principle that… violent and/or sexual crimes are viewed very seriously;
(b) …
(c) The sentence imposed by the court for a crime or crimes;
(d) The frequency of the non-citizen’s offending and whether there is a trend of increasing seriousness;
(e) The cumulative effect of repeated offending;
(f) …
(g) Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status….
The contention made by the Minister is that the Applicant’s conduct and criminal history to date is very serious. I think that contention is well made and can be readily supported by a reasonable and fair-minded application of the abovementioned factors. It is not, to my mind, open to the Applicant to deny the reality that his offending occurred shortly after he became an adult and that it has consistently recurred throughout his life, becoming more serious the older he became. Custodial terms have not deterred him from re-offending, neither has a fair and reasonably worded written warning from the Minister in 2011 that his offending conduct was seriously threatening the status of his visa. Indeed, his most serious offending occurred after he has had the benefit of lighter sentences and the Minister’s abovementioned written warning.
I am open to a submission about the isolation of a given phase of offending during a “wild” or “bad” period. Such offending can be isolated because an applicant with such a history would have periods of responsible and productive conduct on either side of a negative period involving very serious offending. But this is not the case with this Applicant. His offending history commenced in 1997 and has not abated. It has an underlying and undeniable theme of transgression around both consumption of drugs and the drug trade. It features additional themes of:
(a)a ready resort to the easy option of deriving income via illegal activity;
(b)the implementation of violence to prove a point or achieve an outcome;
(c)a refusal to respect the personal and property rights of others; and
(d)a refusal to submit to and respect the lawful authority that governs the community to which he now seeks to be returned.
Such a history cannot be played down. One’s initial impulse is to categorize the offending as serious. Upon (1) further reflection; and (2) the application of the above listed factors in paragraph 13.1.1 of the Direction, the Applicant’s offending – certainly in cumulative terms – must be categorised as very serious.
Sub-paragraph (a) of paragraph 13.1.1 of the Direction provides that violent and/or sexual crimes are viewed very seriously. It is also surely beyond argument that the offences committed by this Applicant involving an element of violence (actually perpetrated or facilitative) are within the ambit of sub-paragraph (a) to be “viewed very seriously”. The Applicant’s offending history confirms he is no stranger to any of these categories of offending.
With specific reference to offences involving elements of violence, the following can be noted from the Applicant’s criminal history:
· Offences of violence:
o30 June 1997: Assault occasioning bodily harm;
o6 October 1997: Riotous behaviour; in addition, behaving in a violent, disorderly, indecent, offensive, threatening and insulting manner;
o23 February 2008: Possession of a knife in a public place or a school; and
o3 December 2013: Unlawful possession of prohibited weapons.[17]
[17] Weapons Act 1990 (Qld) sch 2; Weapons Categories Regulation 1997 rr 5, 7 and 8.
The Applicant’s offending involving a theme or element of violence does not devolve into lesser offences. Rather, it evolves into violence (or the capacity to commit violence) in the context of a deliberate and essential adjunct to very serious drug offending. When determining the Applicant’s appeal against aspects of the sentence imposed upon him on 3 December 2013,[18] the Court noted:
“[4] The charges in the first indictment occurred in this way…. police were called to a domestic disturbance at the house where the Applicant and his girlfriend lived. They found $4,285 in his bedroom and two vials of liquid labelled testosterone and nandrolene [sic] in the kitchen. Later police found his car, which he had attempted to conceal from them by parking it at a shopping centre. In it were toiletry bags containing a brown crystal substance and white powder, scales, spoons, tape, scissors, cold and flu tablets, telfast tablets, empty clip-seal bags and a notebook recording names and money amounts …. The white powder weighed 559.767 grams with a total weight of pure heroin of 83.055 grams (purity 15 per cent) (count 1). The brown crystal substance was contained in six plastic bags and weighed a total of 280.872 grams with a total weight of pure methylamphetamine of 125.718 grams (51.8 per cent pure) (count 2).The vial contained testosterone (count 3).
[5] The offences in the second indictment occurred in this way….. police intercepted a Nissan Skyline driven by the Applicant’s co-offender, [name redacted] …. in which the applicant was a passenger…. Underneath a floor mat they found two bags. One contained a locked portable safe, a smaller bag with a silver handgun …., a leather gun holster and a box containing two small tubs of clear rocks. Inside the safe was $4,415 in cash bundled in $1,000 lots; a bag containing a red balloon inside a blue balloon which contained green leafy material; three small packages of compacted white crystals in a freezer bag; four smaller packages in a freezer bag, one containing brown packed crystals, two containing white crystals and one with four smaller bags containing dark brown crystals. The safe also contained a black wetsuit bag inside which was a freezer bag with two small packages of white crystals; a plastic bag containing five smaller packages of white crystals and another plastic bag containing white crystals. A bag found in the boot contained scales, small plastic tubs, freezer bags, spoons, scissors, a calculator, rubber bands and sticky tape. Another bag in the boot contained $148.30 and a small box, inside which was a plastic bag of green leafy material. Police found $4,715 in cash in the applicant’s shorts pocket. The seized substances were analysed and found to contain 131.755 grams of methylamphetamine; 0.054 grams of heroin; 6.742 grams of morphine; 9.266 grams of cocaine; 5 grams of cannabis and an unspecified amount of codeine….. The applicant’s fingerprints were found on a container of brown sludge liquid which contained methylamphetamine and on the plastic bag holding the green leafy material inside the small box. He declined to take part in a police record of interview.”[19]
[My underlining]
[18]Exhibit R2, Section 501 G Documents, GO2, Attachment A: National police certificate, p. 32. In particular, the Applicant sought, and was granted, leave to appeal the parole eligibility date of the sentence imposed on 3 December 2013. The Queensland Court of Appeal varied the sentence by setting a parole eligibility date of 15 January 2018. The Applicant was then placed in immigration detention.
[19] Ibid, G02, Attachment B: Supreme Court of Queensland, Order of the Court of Appeal, pp. 43 – 44.

My purpose in quoting so extensively from the Queensland Court of Appeal’s decision is to demonstrate that the presence of the silver handgun came about in circumstances involving an obvious level of commerciality behind the Applicant’s involvement in drugs. It cannot be reasonably asserted that all of these unlawful drugs were stored in one motor vehicle at one time for the personal use of either or both of the Applicant and his

co-offender. In a similar way, it cannot be said that the presence of the silver handgun in the context of the stated factual matrix, was for some type of private purpose. The clear intimation is that the handgun was available to augment the unlawful activity conducted by the Applicant and his co-offender.
Further, what can also be taken from the criminal history, is that initial offences involving violence have escalated from:
(a)the Applicant behaving in a violent or potentially violent way (behaving riotously, offensive, threatening and insulting behaviour[20]) to
(b)violence perpetrated by the Applicant on another person (assault occasioning bodily harm[21]) to
(c)possession of a knife in a public place or a school[22] to
(d)possession of an unlawful weapon (possession of the silver handgun[23]).
I am of the view that the evolution of the Applicant’s offences of violence, culminating in him being found in possession of a silver handgun in the context of commercial involvement in the drug trade, is strongly suggestive of the Applicant’s propensity towards involvement in violent crime and, as such, must be viewed very seriously.
[20]Ibid, G02, Attachment B: Supreme Court of Queensland, Order of the Court of Appeal, p. 37 – conviction, Brisbane Magistrates Court, 6 October 1997.
[21]Ibid, G02, Attachment B: Supreme Court of Queensland, Order of the Court of Appeal, p. 38 - conviction, Brisbane Magistrates Court, 30 June 1997.
[22]Ibid, G02, Attachment B: Supreme Court of Queensland, Order of the Court of Appeal, p. 36 - conviction, Ipswich Magistrates Court, 23 February 2008.
[23]Ibid, G02, Attachment B: Supreme Court of Queensland, Order of the Court of Appeal, p. 33 - conviction, Brisbane Supreme Court, 9 December 2013.
Sub-paragraph (c) of paragraph 13.1.1 of the Direction concerns itself with the sentence imposed by the Courts for a crime or crimes committed by an applicant. For present purposes, sentencing involves the imposition of a custodial term which, in effect, removes an individual from mainstream society. It is a measure of last resort in the sentencing process. A review of the penalties and sentences imposed on the Applicant is demonstrative of this. In the early phases of his offending, one can see how the sentencing Courts sought to treat him with leniency as an early or first-offender. Variously stated, he received penalties or sentences involving the non-recording of a conviction, the imposition of a regime of probation, moderate level fines together with orders for restitution. As his offending history maintained its consistency and increased in severity, the penalties and sentences imposed upon him became significantly more severe.
In addition to punishing an offender, the further and perhaps more critical purpose of sentencing, is to deter an offender from re-offending. In addition to punishing offenders, the sentencing process asks these questions:
(a)will this regime of punishment teach this offender something?; and
(b)will this regime of punishment demonstrate to an offender that what he has done is wrong and that if he were to re-offend, there would be a proportionate increase in severity in any future sentence imposed upon him?
A longitudinal view of the Applicant’s criminal history demonstrates that he has learnt little or nothing from the sentences imposed upon him.
Although not actually a sentence per se, there is a further element in this Applicant’s history that demonstrates he does not listen to lawful authority – whether this is in the form of a judge in a sentencing court or the Minister. This is clear because in 2011, the Applicant received a written warning from the Minister telling him to mend his offending ways or to otherwise place his visa status in serious jeopardy. He learnt nothing from the Minister’s warning, just as he learnt nothing from the sentences imposed upon him. He simply kept offending and doing so on an increasingly serious basis.
The progressively more serious nature of the sentences imposed on the Applicant can be readily seen from his offending history. For the first ten years of that history, he received the benefit of non-custodial terms. Examples include:
·30 June 1997 – Assault occasioning bodily harm: no conviction recorded, fined $300 and ordered to pay restitution in the sum of $750;
·20 March 1998 – Break and enter dwelling house with intent (3 charges) and stealing (2 charges): no conviction recorded for all charges and ordered to pay restitution in the sum of $5,149.70 with a time to pay of three years;
[My underlining]
·
For three breaches of bail in a ten month period spanning the dates of

23 January, 18 May and 9 October 2007: convicted and respectively fined $300, $300 and $150.
[My underlining]
After about the first ten years of his offending history, the sentencing Courts begin to lose patience with the Applicant and are more readily inclined to activate a custodial option:
·21 November 2007 - Failure to appear in accordance with an undertaking: convicted and sentenced to 14 days imprisonment;
·21 July 2008 – Obstructing Police, failure to appear in accordance with an undertaking, contravening a direction or requirement: convicted and sentenced to imprisonment for one month;
·25 September 2008 – Unlawful possession of suspected stolen property: conviction recorded and sentenced to 21 days imprisonment;
·6 October 2008:
oSupplying dangerous drugs (Schedule 1): conviction recorded and sentenced to three years imprisonment;
oPossession of dangerous drugs (Schedule 2): conviction recorded and sentenced to one month imprisonment;
oPossessing anything used in the commission of a crime: conviction recorded and sentenced to three months imprisonment;
oA conviction was recorded for each of these offences and all terms of imprisonment were ordered to be served concurrently; and
oThe Applicant also had a number of summary offences dealt with on this date, a conviction was recorded for these but no further punishment ordered.
·3 December 2013:
oPossession of dangerous drugs (Schedule 1) (2 Charges): conviction recorded and sentenced to nine years imprisonment;
oPossession of dangerous drugs (Schedule 2): conviction recorded and sentenced to four years imprisonment;
oPossession of dangerous drugs: conviction recorded and sentenced to two years and three months imprisonment;
oUnlawful possession of a weapon: conviction recorded and sentenced to six months imprisonment; and
oThe Applicant also had a number of summary offences dealt with on this date, a conviction was recorded for these but no further punishment ordered.
·3 August 2015:
oPossession of dangerous drugs: conviction recorded and sentenced to six months imprisonment.
·7 May 2014:
oBreach of bail, conviction recorded.
·3 August 2015:
oPossession of dangerous drugs: conviction recorded and sentenced to six months imprisonment.
The sentencing regime imposed by the Supreme Court of Queensland on the Applicant on 3 December 2013, effectively comprised a term of imprisonment of 11 years and three months with parole eligibility after about five and a half years.[24] The Applicant appealed this sentencing regime to the Queensland Court of Appeal. The Court of Appeal

(per President Margaret McMurdo J) noted:
“[21] …. Under the sentence imposed by the judge, effectively 11 years and three months imprisonment, the applicant is eligible for parole after about five and a half years. Appropriate modest recognition for his late plea to the offences in the first indictment, despite his absconding, would be to set this parole eligibility date after about four and a half years, that is on 15 January 2018...
[22] I would grant the application for leave to appeal, allow the appeal, and vary the sentence by setting parole eligibility on 15 January 2018. I would otherwise confirm the sentence imposed.”[25]
[My underlining]
[24]Ibid, G02, Attachment D: Transcript of proceedings the Supreme Court of Brisbane, p. 53.
[25] Ibid, G02, Attachment B: Supreme Court of Queensland, Order of the Court of Appeal, pp. 47 - 48.
The increasingly severe level of sentences progressively imposed on the Applicant in the course of his history of offending, leave me in no doubt about the very serious nature of his criminal offending. Viewed another way, the Applicant has received a totality of custodial terms as follows:
·On 21 November 2007:          14 days
·On 21 July 2008:  14 days
·On 25 September 2008:        21 days
·On 6 October 2008:               3 months
·On 6 October 2008:               1 month
·On 6 October 2008:               3 years
·On 18 April 2013:                   1 month
·On 18 April 2013:                   1 month
·On 3 December 2013:  6 months
·On 3 December 2013:  2 years and 3 months;
·On 3 December 2013:  4 years;
·On 3 December 2013:  9 years;
·On 3 August 2015:                 6 months.
The above custodial sentences amount to at least 19 years, 10 months and 18 days. Expressed as one period, the totality of the custodial terms imposed upon this Applicant comprises 19 years and almost 11 months. His criminal history runs for a period of just over 18 years. The sentencing Courts have seen fit to impose cumulative “head” custodial terms of almost 20 years across the totality of the Applicant’s 18 year criminal history. Such is the seriousness of his offending that the sentencing authorities have considered his offending worthy of custodial punishment for a cumulative period of 110% of that

18 year criminal history.
While groups of custodial terms may have been ordered to be served concurrently, or may otherwise have been suspended for an operative period, the inescapable reality is that the sentences imposed by the Courts for crimes committed by the Applicant are severe and thus indicative of the very serious nature of his offending.
Sub-paragraph (d) of Paragraph 13.1.1 of the Direction compels a decision-maker to look at the frequency of the non-citizen’s offending and to ascertain whether there is any trend of increasing seriousness. As observed by the Minister, “the Applicant’s offending has demonstrated a frequent and sustained pattern of offending… in circumstances where he has been convicted of multiple drug offences, property offences (including breaking and entering) and contravening directions or requirement…”.[26]
[26] Exhibit R1, Respondent’s SFIC, p. 8, para [20(c)].
There is obvious consistency and a recurring nature apparent in the Applicant’s history of offending. As mentioned earlier, his offending cannot be isolated to a bad phase or phases in his life. There is both a demonstrable frequency and trend of increasing seriousness in his offending. Both of these elements in his criminal history are best understood by a categorization and review of that history. I will now provide an outline of this history.
Offences against the personal and property rights of others:
(a)30 June 1997: Assault occasioning bodily harm;
(b)6 October 1997: Riotous behaviour; behaving in a violent, disorderly, indecent, offensive, threatening, insulting manner;
(c)20 March 1998: Break and enter dwelling house with intent (3 charges);
(d)23 February 2008: Possession of a knife in a public place or a school;
(e)25 September 2008: Unlawful possession of stolen property;
(f)14 October 2009: Commit public nuisance;
(g)3 December 2013: Unlawful possession of a weapon.
Drug offences:
(a)6 October 2008: Supply dangerous drugs (Schedule 1);
(b)6 October 2008: Possession of dangerous drugs (Schedule 1);
(c)6 October 2008: Possession of dangerous drugs (Schedule 2)
(d)6 October 2008: Possessing anything used in the commission of a crime;
(e)6 October 2008: Possessing property suspected of having been acquired for the purpose of committing a drug offence;
(f)6 October 2008: Possessing utensils or pipes etc for use;
(g)23 July 2013: Possession of dangerous drugs;
(h)3 December 2013: Possession of dangerous drugs (Schedule 1) (2 Charges);
(i)3 December 2013: Possession of dangerous drugs (Schedule 2);
(j)3 December 2013: Possession of dangerous drugs;
(k)3 December 2013: Possession of property suspected of being the proceeds of an offence under the drugs misuse act;
(l)3 December 2013: Possession of property suspected of having been acquired for the purpose of committing a drug offence;
(m)3 December 2013: Possessing utensils or pipes etc for use;
(n)3 December 2013: Possessing property suspected of having been acquired for the purpose of committing a drug offence;
(o)3 December 2013: Possession of property suspected of being the proceeds of an offence under the drugs misuse act;
(p)3 August 2015: Possession of dangerous drugs.
Offences indicating a refusal to submit to lawful authority:
(a)24 September 1997: Breach fine option order;
(b)3 October 1997: Breach fine option order;
(c)17 April 2002: Contravene direction or requirement;
(d)19 April 2002: Breach of probation order;
(e)23 January 2007: Breach of bail;
(f)18 May 2007: Breach of bail;
(g)9 October 2007: Breach of bail;
(h)21 November 2007: Failure to appear in accordance with an undertaking;
(i)21 July 2008: Obstructing Police officer in the course of his duty;
(j)21 July 2008: Failure to appear in accordance with undertaking;
(k)21 July 2008: Contravene direction or requirement;
(l)9 April 2010: Contravene direction or requirement;
(m)17 May 2010: Contravene direction or requirement;
(n)18 April 2013: Failure to appear in accordance with undertaking;
(o)18 April 2013: Failure to appear in accordance with undertaking;
(p)7 May 2014: Breach of bail.
Even a cursory review of the above schedule of offences leads a decision-maker to the conclusion that the Applicant’s offending is so frequent and sustained that it can only be described as falling into the category of very serious offending. The Applicant’s refusal to submit to and respect lawful authority is evident in his history from its commencement. The Applicant’s criminal history runs from June 1997 until August 2015. Specifically, his offences indicating a refusal to submit to lawful authority run from September 1997 until May 2014. While this component of his history may not have an upward trend of seriousness, its frequency and consistency cannot be denied.
The history relating to offences against the personal and property rights of others runs from June 1997 until December 2013. His earlier offending (June 1997 and October

1997 respectively) may, perhaps, be put down to miscreant youth, involving, as it sometimes does, a lack of self-moderation and control. However, there is a clear increase in the level of seriousness of this offending, particularly from 2008 onwards. In March 1998, the Applicant was dealt with for three separate charges of breaking and entering a dwelling with intent to commit an offence. He received the benefit of an order for restitution, which, according to his history, he failed to pay, despite being allowed a period of three years to do so. His offending in this category then escalates to possession of weaponry, be it in the form of a knife in a public place or a school or possession of a silver handgun. As I have outlined earlier, the charge relating to possession of the silver handgun arose in the factual circumstances of the Applicant’s very serious drug offending, resulting in the imposition (on 3 December 2013) of custodial terms totalling 15 years and 9 months[27].
[27]The sentencing judge, Martin J at first instance sentenced the Applicant to 11 years, 3 months’ imprisonment in total– and on appeal, President Margaret McMurdo J, agreed with this sentencing. The custodial term cumulatively totals 15 years and 9 months.
Of most concern in terms of any assessment of the nature and seriousness of this Applicant’s conduct, is his offending in the realm of illegal drugs. This offending is both consistent but is also demonstrably increasing in seriousness. The Applicant’s has spent approximately the first six years of his offending history committing offences unrelated to drugs. But things change after those first six years and his involvement in unlawful activity regarding illegal drugs commences in or about 2003. At once, the offending is serious. There are two main drug sentencing “episodes”. The Applicant was first sentenced for a total custodial term of three years and four months, to be served concurrently (3 years) on 6 October 2008. Following this, the Applicant was then sentenced to serve a total custodial term of 11 years and three months on 3 December 2013. The escalation in the seriousness of this offending is undeniable.
I am therefore of the view that the frequency of the Applicant’s offending and its increasing trend of seriousness, clearly renders the Applicant’s offending as very serious.
Sub-paragraph (e) of paragraph 13.1.1 of the Direction requires me to consider whether the cumulative effect of the Applicant’s repeated offending is such as to render it serious. Largely for the reasons already stated, my view is that it does. Having longitudinal regard to the Applicant’s 18 year offending history as a whole, it is very difficult to understand how one can reasonably find the Applicant has somehow turned a corner and is no longer subject to the propensities giving rise to his offending history.
One cumulative effect of the Applicant’s offending is that it demonstrates that he has not developed any respect for lawful authority. Earlier in these Reasons, I have cited

16 instances that involve the Applicant effectively ignoring lawful authority and doing so without any reasonable or acceptable excuse. Of those 16 instances, four involve the abuse of a privilege bestowed upon him by the Court, namely, bail. Four involve a breach of his own undertaking to submit himself to lawful authority on a given date and time, due notice of which must have surely been provided to him. Five involve the Applicant either contravening a direction or requirement sought from him by lawful authority or, otherwise, obstructing a Police officer in the course of his duty. Three involve the Applicant breaching and abusing the privilege of either a fine option order or a probation order that the sentencing Courts imposed upon him as an alternative to a sentence of actual custody. It should also be noted that one of the abovementioned breaches of bail involved not just a refusal to appear in Court or to otherwise meet a requirement of that bail. It involved the Applicant breaching his bail conditions by absconding and remaining at large.[28]
[28]Exhibit R2, Section 501 G Documents, G02, Attachment D: Transcript of proceedings the Supreme Court of Brisbane, p. 51.
Another cumulative effect of the Applicant’s repeated offending is what the history makes clear: he receives a regime of punishment from a sentencing Court, yet re-commences his offending ways and, more often than not, subsequently offends in a more serious way. I have set out below relevant examples:
·in March 1998, the Applicant was charged and convicted on three counts of breaking and entering a dwelling with intent to commit an offence. No conviction was recorded and he received the benefit of a non-custodial term in the form of three years probation with a requirement to pay compensation to the victim(s) in the sum of $5,149.70 within three years. Yet in April 2002, he found himself back before the sentencing Courts for a breach of the terms of the favourable probation order he received in March 1998;
·in October 2008, the Applicant received total custodial terms of three years and four months essentially based on charges of supply and possession of dangerous drugs. One would have though this sort of custodial term would act as a deterrent. It clearly was not because in December 2013 he received total custodial terms of 15 years and nine months for essentially the same type of offending; and
·both the Applicant and his representative contended that the offending days were a thing of the past and that if he were allowed back into the community there is no prospect of him returning to these sorts of offending ways. The Applicant’s history does not bear this out and the stark reality is that he has not offended for approximately the last three years simply because he has been in either criminal custody or immigration detention during that period.

The cumulative effect of the Applicant’s repeated offending serves to demonstrate that he has not developed any respect for lawful authority and for those institutions that he must out of necessity respect and submit to were he to be released back into the community. The totality of his offending does not inspire any confidence that he has somehow turned a corner or will not otherwise yield to his own unresolved inclinations to further offend in the future.
Sub-paragraph (g) of paragraph 13.1.1 of the Direction compels a decision maker to examine whether the non-citizen has re-offended since being formally warned, in writing, about the consequences of further offending in terms of that non-citizen’s migration status. This factor is clearly not favourable to the Applicant. In 2011, the Minister warned the Applicant about the adverse consequences his offending could have on his migration status.[29]
[29]Exhibit R2, Section 501 G Documents, G02, Attachment AR: Notice of intention to consider cancellation, pp. 180 – 185.
By letter dated 10 June 2011,[30] the Minister notified the Applicant that the visa authorising his continued stay in Australia could be liable for cancelation on character grounds. He was given the benefit of the doubt on that occasion, while at the same time, the Minister made his position abundantly clear to him:
[30] Ibid.
NOTICE OF INTENTION TO CONSIDER CANCELLATION OF YOUR VISA UNDER SUBSECTION 501(2) OF THE MIGRATION ACT 1958
….
Your visa is to be considered for cancellation under subsection 501(2) of the Migration Act 1958 (the Act), on the grounds that you have a substantial criminal record.
[The letter then proceeds to explain the concept of cancellation of a visa on character grounds and, further, explains the character test and the consequences of the Applicant being found to not pass the character test.]
…
What happens if your visa is cancelled?
If your visa is cancelled, any other visa you hold will also be taken to have been cancelled…..
This means that if your visa is cancelled under subsection 501(2) you will no longer hold a substantive visa and, when you are released from criminal detention, will then be subject to immigration detention and removal from Australia, pending the exercise of any review rights.
The cancellation of your visa under subsection 501(2) would also prevent you applying for most other visas in Australia……
Finally, if your visa is cancelled on character grounds and you are removed from Australia, you will not meet the legal requirements to be granted a visa outside Australia.
[Emphasis in original]
This letter was forwarded by pre-paid registered post. The Applicant in response completed a personal details form that was enclosed in the Minister’s letter. The Applicant signed the personal details form on 15 June 2011.[31] There can be no question about whether the Applicant received this letter. Further, there has been no contention raised to suggest that he did not understand its contents.
[31] Ibid, p. 186.
Despite receiving this letter, the Applicant continued to offend. The Applicant’s pattern of offending confirms that he did not take the warning seriously. From the date he received this letter of warning (mid 2011) until he was placed in criminal custody in 2015, the Applicant contrived to commit the following offences:
·18 April 2013: Failure to appear in accordance with an undertaking (conviction recorded, term of imprisonment one month, wholly suspended);
·18 April 2013: Failure to appear in accordance with an undertaking conviction recorded, term of imprisonment one month, wholly suspended);
·23 July 2013: Possession of dangerous drugs (conviction recorded, fine imposed);
·3 December 2013: Possession of dangerous drugs – Schedule 1 (nine year custodial term imposed);
·3 December 2013: Possession of dangerous drugs – Schedule 2 (four year custodial term imposed);
·3 December 2013: Possession of dangerous drugs (custodial term of two year and three months imposed);
·3 December 2013: Unlawful possession of a weapon (custodial term of six months imposed);
·7 May 2014: Breach of bail (convicted but not further punished due to custodial term imposed in the immediately following sentence of six months); and
·3 August 2015: Possession of dangerous drugs (six month custodial term imposed).
The content of the letter of warning issued by the Minister to the Applicant could not have been clearer. His blatant disregard of this warning is palpable and beyond excuse. The Applicant has ignored a duly issued warning by the Minister about the adverse impact his offending conduct would have on his migration status in this country, to my mind, this confirms the very serious nature of his criminal conduct. He was given an opportunity to modify and ameliorate his conduct. He failed to do so after a reasonable and appropriately worded written warning and, indeed, continued to offend – at significantly increasing levels of seriousness - after receiving that warning. This refusal to heed the warning and his subsequent ready recourse to ever more serious offending is a factor confirmatory of the very serious nature of his offending.
It is difficult to find any trend in the history militating in favour of any different or lower characterisation of the history. His refusal to submit to and respect lawful authority has never abated and consistently appears throughout his offending history of 18 years. While not increasing in seriousness, its frequency cannot be denied. The history as it relates to the personal and property rights of others commences at a low level but graduates to possession of a prohibited weapon in the context of a clearly commercial involvement in the drug trade. For reasons previously mentioned, the gravity of his involvement with illegal drugs is amply demonstrated by the totality of custodial terms imposed upon him for this sort of offending.
The Applicant has also failed to modify his conduct despite the warning he received in 2011 about the adverse consequences of his offending on his migration status. Arguably, if the Applicant had heeded the Minister’s warning in 2011, he may well have avoided the two very significant sentencing events in October 2008 and December 2013, for his drug offending. The reality is that he did not heed that warning and committed ever more serious offences which, in turn, now characterize the totality of his 18 year criminal history as very serious.
Upon (1) an application of the relevant sub-paragraphs of paragraph 13.1.1 of the Direction to the Applicant’s conduct giving rise to his criminal history; and (2) taking a longitudinal view of that history with its inherent silence about any amelioration or modification of the Applicant’s behavioural patterns giving rise to his offending, I find that the nature and seriousness of the Applicant’s conduct to date is of a very serious nature.
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
Consideration of this component of Primary Consideration A requires me to make an assessment of whether the Applicant represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community. Logically to my mind, the Direction stipulates that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Further, the Direction says that certain conduct, if it were to be repeated, ought to be regarded as sufficiently serious such as to give rise to an unacceptable risk to the safety and wellbeing of the Australian community.
The assessment of this risk requires me to consider two specific paragraphs of the Direction:
(a)Paragraph 13.1.2(2)(a) requires me to consider the nature of the harm to individuals or the Australian community should the Applicant behave in further criminal or other serious conduct; and
(b)Paragraph 13.1.2(2)(b) requires me to have regard to the likelihood of the Applicant engaging in further criminal conduct, including evidence of reoffending and rehabilitation.
The nature of the harm to individuals or the Australian community should the Applicant engage in further criminal or serious conduct
The Applicant has committed a number of offences across an 18 year period, involving offences against the personal or property rights of others, increasingly serious drug offences and a persistent refusal to submit to lawful authority. As I have found, this offending, taken in totality, can only be viewed as very serious.
The totality of the Applicant’s conduct giving rise to his history of offending is, to my mind, suggestive of several things:
(a)he does not comprehend the actual and potential catastrophic effect of his involvement in the unlawful drug trade on other people in our community;
(b)his willingness to repeatedly default towards the easy option (or, at least, what he sees as the easy option) of seriously engaging in unlawful activity as a means of remuneration;
(c)his demonstrated refusal to accept and defer to the lawful authority whether it be by breaching his own promise to do something or to simply not follow a lawful direction or to actively cause a law enforcement officer to discharge his own duties for the benefit of the community; and
(d)his abject failure to moderate his behaviour – despite the deterrent efforts of sentencing courts in circumstances where:
(i)he has significant parental and familial responsibilities for a spouse and two infant children; and
(ii)he has received a warning from the Minister to stop offending or there would otherwise be adverse consequences for his migration status.
Professor Ian Coyle: Evidence in Chief
Professor Ian Coyle is an experienced psychologist. Professor Coyle provided a forensic assessment[32] of factors he says he identified in the Applicant’s psychological constitution that could inform the Tribunal’s consideration of this application. Professor Coyle’s evidence in chief was quite brief. He provided his personal particulars and confirmed that (a) he was the author of the subject report; and (b) that he still held the opinions contained in that report. Notably, Professor Coyle travelled from Queensland to Western Australia on 13 October 2018 to interview and assess the Applicant. He met with the Applicant for one hour and 45 minutes.[33] It should also be noted that the Minister who made the decision under review did not have the benefit of Professor Coyle’s report, nor did the Minister have an opportunity to obtain any report in response to that of Professor Coyle prior to the hearing of this application.
[32] Exhibit A5, Report of Professor Ian R Coyle, dated 18 October 2018.
[33] Ibid, p. 3, para [5].
Professor Coyle comprehensively reviewed the Applicant’s medical history, his relevant psychosocial and vocational history and his criminal history. Professor Coyle formed the opinion that the Applicant “…. is currently suffering from an Adjustment Disorder with Depressed and Anxious Mood in accordance with the nosology of the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5)”.[34]Further, Professor Coyle opined:
“On clinical grounds I formed the view that he does not have any significant risk of recidivism or committing any other serious offences. Curiously enough, this is because of the predicament he finds himself in. This has, for the first time, forced him to fully acknowledge his behaviour.”[35]
[Emphasis in original]
[34] Ibid, p. 8, para [20].
[35] Ibid, p. 9, para [21].
Professor Coyle then turned his mind to the language of the Direction and the predictive exercise of assessing an applicant’s risk of re-offending:
“54 ….There is another problem when trying to integrate the scientific literature with the words employed in Direction 65. No test, of whatever type, employs verbal descriptions or anchors of ‘minimal’ or ‘remote’ in the entire scientific lexicon. The lowest category of risk in any test used to assess recidivism of any type cited in the scientific literature is ‘low’. This may, or may not, depending on one’s view and considering the probabilities that can be derived for group data from nomothetic tests or structured professional judgment equate to minimal or remote.
55. Clearly, within the context of legislation and the conjoint provisions of Direction 65 it is not contemplated that no one can be adjudged to have a minimal or remote risk of recidivism or committing some other serious offence. The observations [at paragraph 44] of the delegate who refused to revoke the cancellation of [the Applicant’s] visa on the basis that he/she was ‘unable to be satisfied that there is no risk of [the Applicant] reoffending in a similar matter [sic]’ are therefore irrelevant. Nor, from a forensic psychological perspective, does the language of Direction 65 support the delegate’s assertion [at paragraph 44] that ‘even the smallest of risk of reoffending’ can be equated with ‘minimal and remote’.
56. Put differently, the delegate’s arguments amount, as a matter of logic, to proclaiming that no matter how infinitesimal a risk is it is unacceptable. On this basis Direction 65 would be, by definition, internally inconsistent and unviable as a matter of logic and mathematics.”[36]
[Emphasis in original, footnotes omitted]
[36] Ibid, pp. 16 – 17, paras [54], [55] and [56].
Professor Coyle made the following additional findings:
“7.2 [The Applicant’s] Perception of Specific Deterrence
60. [The Applicant] is most acutely aware of the parlous position he finds himself in. Should his application to have the Minister’s cancellation of his Permanent Visa be successful he will be forever mindful that he is but a small step from finding himself in this position again. Considering the egregious psychosocial problems he would face were he to be removed to Vietnam this shall act as a most powerful incentive for him to not commit any crime or other serious offences in the future. In my opinion, simply considering this factor, in isolation from all others, it is unlikely in the extreme that he shall recidivate or commit any other serious offences.
[Emphasis in original]
7.3 Forensic Assessment
61. There is nothing in [the Applicant’s] clinical presentation that remotely suggests that he suffers from any disorder or condition that predisposes him to commit any crimes in [sic] or other serious offences in the future. The results of the HCR-20-3 fortify this opinion. Being wearily cynical of protestations of innocence and remorse of inmates I have assessed over many decades I did not detect anything other than genuine remorse and contrition on [the Applicant’s] part: and a well-warranted acceptance of the arrant stupidity of his behaviour. To be sure, Mr Tran is well seized of the stupidity and consequences of his behaviour. These will be something that will hover over his psyche like the sword of Damocles.
62. All things considered that the fundamental problem over the years has been [the Applicant’s] substance abuse his prospects of recidivism are minimal and remote now that he has remained drug free for some six years. Given the heavy weight of specific deterrence lying upon him to avoid re-offending I am of the view that he shall modify his behaviour.”[37]
[37] Ibid, p. 18, paras [60], [61] and [62].
Professor Coyle reaches the following diagnosis and conclusion:
“12.0 CONCLUDING COMMENTS AND OPINION
12.1 Diagnosis
68. In accordance with the nosology of the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5) it is my opinion that [the Applicant] is suffering from an Adjustment Disorder with Depressed and Anxious Mood. I expect this to resolve if the cancellation of his visa is revoked. He is not suffering from any lack of volitional control nor does he exhibit any personality traits that would predispose him to recidivate or commit other serious offences. He has completed drug addiction courses whilst incarcerated and his long-term prospect of returning to substance abuse is remote provided he is motivated. The prospect of being removed from Australia has provided this motivation. He fully realises that should he offend again then he shall be removed from Australia. Ultimately, it is my opinion that the pull of his family outweighs his prior ‘raging addiction to drugs’ that was noted by the Queensland Court of Appeal as being pivotal to

[the Applicant’s]
offending.”[38]
[Emphasis in original]
[38] Ibid, p. 20, para [68].
In response to specific questions put to him in a “Letter of Instruction”[39] from the Applicant’s representative, Professor Coyle responded as follows:
[39] This Letter of Instruction appears at the front of Exhibit A5 comprising the report of Professor Coyle.
“13.0 THE QUESTIONS POSED TO ME
….
13.1 The Prospect of Recidivism
76. Q. What is the likelihood of [the Applicant’s] conduct being repeated? Is there more than the minimal or remote chance that [the Applicant], if allowed to remain in Australia would engage in criminal conduct or represent a danger to the Australian community or a segment of that community, whether by way of being liable to becoming involved in activities that are disruptive to, or in violence by threatening harm to that community or segment or in any other way?
77. A. The risk is minimal and remote.
13.2 Character
78. Q. Would you consider [the Applicant] to be of ‘good character’?
A. Yes – now.
13.3 Risk to the Australian Community
79. Q Should [the Applicant] be allowed to remain in Australia and not have his visa cancelled, what degree of risk would he pose to the Australian community?
80. A. Minimal and remote.
13.4 The Trust of the Australian Community
81. Q. If [the Applicant] were allowed to remain in Australia, would he be likely to breach the trust of the Australian community?
82. A. No.
13.5 [The Applicant’s] Health
83. Q. In his Statutory Declaration, [the Applicant] has advised that he has had psychotic symptoms previously in that he was hearing voices. In your opinion, has he ever suffered from mental illness and if he has, advise as to whether this mental illness may have contributed to him engaging in the criminal conduct that he was convicted of?
84. A. [The Applicant’s] psychotic symptoms were drug related. He does not and never had had an underlying mental illness that was not drug related. I doubt that these psychotic symptoms were causative of his offending behaviour albeit that they were conjoint with the offending behaviour.
13.5 Rehabilitation
85. Q. Do you consider [the Applicant] to be fully rehabilitated, given that he has undertaken rehabilitation courses in prison?
86. A. Yes, especially considering other psychological considerations vis-à-vis specific deterrence and associated issues commented on supra.”[40]
Professor Ian Coyle – Cross Examination
[40]Exhibit A5, Report of Professor Ian R Coyle, dated 18 October 2018 pp. 21 – 23, paras [76] – [86].
The Applicant’s representative provided a Letter of Instruction to Professor Coyle to facilitate the report. While there is nothing remarkable about a medical expert receiving a Letter of Instruction from those seeking his opinion, the subject letter of instruction is, to an extent, unique in two ways. First, it comprises some 14 typed pages and, in my respectful view, on occasions departs from the provision of actual instructions and further devolves to a commentary reflective more of the instructor’s own views about the merits of the application. Second, the Letter of Instruction seems to comprise a commentary-type directive as to the outcome sought by the Applicant in these proceedings.
Respectfully, what, for example, do elements such as “expectations of the Australian community” and “international non-refoulement obligations” have to do with Professor Coyle’s area of expertise and the opinion sought from him based upon that expertise? There is a clear and palpable difference between the specific questions put to Professor Coyle under the heading “Opinion” (eventually reached at page 11 of 14 of the Letter of Instruction) and the earlier ten pages of commentary, much of which, in my respectful view, is populated by the writer’s opinion.

In cross-examination, Professor Coyle was taken to the abovementioned letter of instruction and asked to comment on certain paragraphs. He was taken to paragraph ten of the instructional letter which talks about the Applicant’s place of birth. In this paragraph, the writer says:
“It is noted that, at this stage, anecdotally, that the Applicant may have been born en route to Australia and therefore may not have been born in Vietnam at all.”[41]
This statement is clearly a matter of opinion because the Applicant – in documents he himself has completed - has told the Minister that his place of birth was Vietnam.[42]
[41] Ibid, p. 2 of 14 of Letter of Instruction, para [10].
[42] Exhibit R2, Section 501 G Documents, G02, Attachment AS: Personal details form, p. 187.
Professor Coyle was then taken to paragraphs 12 – 16 of the Letter of Instruction. Those paragraphs variously talk about these things:
“12. [The Applicant’s] father, younger brother and brother-in-law would often drink continually and this always ended up in violence or raging arguments.
13. The family shifted to Pine Rivers Shire in Strathpine to a rental property, but this did not stop the parents from gambling.
14. [The Applicant] was bullied at school and learnt to look after himself and his young siblings and he learnt Muay Thai (Thai boxing) and competed in the ring as an amateur.
15. Because there was no parental supervision in [the Applicant’s] life and no real male mentor, [the Applicant] was influenced by older children or ‘youths’ and succumbed to peer pressure. [The Applicant] started to break into people’s houses in order to steal anything of value.
16. [The Applicant] ran away from home and fought with his father who it would seem did not provide a good influence.”[43]
[43] Exhibit A5, Letter of Instruction, p. 3 of 14, paras [12] – [16].
Professor Coyle agreed that these paragraphs did contain the writer’s opinion, but was of the further view that there was “…. nothing in them that goes beyond setting parameters”. However, Professor Coyle agreed that the abovementioned paragraph 16 and the following paragraph 30 of the Letter of Instruction did comprise the opinion of the writer of that letter:
“30 It is important to note that [the Applicant] does not know anything else but life in Australia, and if he was to be suddenly uprooted and planted in Vietnam this would be totally alien to him because all of his knowledge and understanding of the community that he has resided is of Australia and he does not know anything else.”[44]
[44] Ibid, p. 5 of 14, para [30].
Be that as it may, Professor Coyle thought that any opinions expressed in the Letter of Instruction did not influence the opinion expressed in his report. He was then taken to paragraph 12 of his own report and to his statement that “He has been drug-free for six years and has not had any urinalysis indicating drug usage during his current period of association.”[45] Professor Coyle was asked how he reached the definitive conclusion that the Applicant had been “drug-free for six years”. His response was that he reached this conclusion purely on what the Applicant told him and without recourse or reliance upon any medical records.
[45] Exhibit A5, Report of Professor Ian R Coyle, dated 18 October 2018 p. 5, para [12].
Professor Coyle was then taken to paragraph 21 of his report where he variously talks about the Applicant being anxious about his current predicament; where Professor Coyle makes a certain diagnosis and where, in particular, Professor Coyle talks about the Applicant “… not suffering from any lack of volitional control”.[46] As part of this same question in cross-examination, he was referred to his finding that:
“On clinical grounds I have formed the view that he does not have any risk of recidivism or committing any other serious offences. Curiously enough, this is because of the predicament he finds himself in. This has, for the first time, forced him to fully acknowledge his behaviour.”[47]
[Emphasis in original]
[46] Ibid, pp. 8 – 9, para [21].
[47] Ibid, p. 9, para [21].
Specifically, Professor Coyle was asked to square this opinion or finding with the stark reality that after committing and subsequently being sentenced for the very serious drug offences on 3 December 2013 (followed by an appeal to the Queensland Court of Appeal on 29 April 2014), the Applicant immediately returned to his offending ways by breaching a bail condition (on 7 May 2014) and being convicted of possession of dangerous drugs on 3 August 2015 for an offence that actually occurred on 27 September 2014, barely five months after the Court of Appeal decision. Professor Coyle’s response was both tepid, unconvincing and devoid of clinical detail. The response did not inspire any confidence in Professor Coyle’s above quoted opinion at paragraph 21 of his report.
Professor Coyle was taken to paragraph 60 of his report where he forms the view that:
“In my opinion, simply considering this factor, in isolation from all others, it is unlikely in the extreme that he shall recidivate or commit any other serious offences.”[48]
[Emphasis in original]
He was asked about how that opinion is sustainable in circumstances where, on

10 June 2011, the Applicant received a warning letter from the Minister threatening cancellation of his visa, yet proceeded to commit his most serious offences in the period following receipt of that letter. The import of the question was how is Professor Coyle’s opinion that fear of removal from Australia to Vietnam can be relied upon as a factor “in isolation from all others” that makes it “unlikely in the extreme” that the Applicant would re-offend. Professor Coyle’s response was again, tepid, unconvincing and largely devoid of clinical detail. He attributed the Applicant’s refusal to respect the Minister’s warning letter to the Applicant “being drug affected in 2011 due to his use of methamphetamine”. This excuse of blaming much of the Applicant’s behaviour on his apparent abuse of illegal substances became a recurring theme throughout not just Professor Coyle’s evidence but in the evidence of other witnesses as well.
[48] Ibid, p. 18, para [60].
I am uncertain about the reliability of such evidence because there was clear pre-planning and an intent to achieve a commercial outcome by the Applicant with his involvement in the drug trade culminating in his two sentencing episodes for this very serious offending in October 2008 and December 2013.
Professor Coyle purported to maintain his view that the Applicant is of minimal risk of

re-offending, but sought to temper that opinion with these words: “To the extent that he remains drug free and does not return to using drugs again”. The resulting question in cross-examination related to the Applicant’s access to drugs while in either criminal custody or immigration detention. Professor Coyle agreed that it is just as easy to obtain drugs in custody and immigration detention as it is to do so in the larger community. Professor Coyle conceded that the Applicant may well have been again exposed to drugs while in custody and immigration detention, but that the prospects of him returning to drugs while in custody and immigration detention was limited, due to the financial cost of those substances to a prisoner or detainee. I again found this evidence tepid, unconvincing and otherwise oriented towards supporting what is probably the central thesis of his opinion about this Applicant, specifically, that the Applicant is, according to Professor Coyle, at minimal risk of re-offending, provided he does not return to abusing illegal drugs.
Professor Coyle – Assessment of his Evidence
I have misgivings about certain aspects of Professor Coyle’s evidence. His finding that the Applicant has been “drug free for six years” is not reliable in circumstances where it is not supported by historical medical evidence and a urinalysis contemporaneous with his interview with the Applicant (on 13 October 2018) and the date of his report

(18 October 2018). Interestingly, Professor Coyle diagnoses the Applicant with Adjustment Disorder with Depressed and Anxious Mood, but says that disorder does not cause any lack of volitional control in the Applicant. According to Professor Coyle, the diagnosis and its significant element of anxiety derives from the Applicant being anxious about finding himself in his present predicament.
The resulting finding of Professor Coyle is that none of the Applicant’s self-reported psychotic symptoms and no aspect of the adjustment disorder, depression and anxious mood, alone or combined, constitute any grounds for an apprehension that he will

re-offend. I have difficulty squaring that opinion with Professor Coyle’s finding that:
“On clinical grounds I have formed the view that he does not have any significant risk of recidivism or committing any other serious offences.”[49]
[Emphasis in original]
I am very cautious about accepting Professor Coyle’s opinion that no other factor - apart from “….. the predicament [the Applicant] finds himself in” is to be accepted as the prime motivator or deterrent behind a low likelihood that he will re-offend.
[49] Ibid, p. 9, para [21].
The Applicant received a clearly worded letter of warning from the Minister in

June 2011 but it had no effect on his continuing to offend. Post the Minister’s letter, the offending became more serious and more sophisticated and was punished by significantly greater terms of imprisonment. There was a “predicament” facing the Applicant in 2011. It did not act as the prime motivator behind him ceasing his offending then and Professor Coyle’s evidence provides scant assurance that the Applicant’s current predicament prevents him returning to his offending ways now, or in future, were he to be released back into the community.
Professor Coyle assigns significant space in his report to the language of the Direction and to descriptors such as “minimal” or “remote”. With due respect to him, it is not his role to assess how the Minister may have predicated his/her decision based on those or other descriptors. As I explained to Professor Coyle at the hearing, the Tribunal is not interested in what may have informed his (i.e. Professor Coyle’s) judgment about the Applicant’s propensity to re-offend. The more critical issue is what Professor Coyle has to say about what informed the Applicant’s judgment during his 18 year criminal history with its undeniably predominant theme of:
(a)refusing to accept, respect and submit to lawful authority; and
(b)the undeniable propensity in the Applicant to return to his offending ways despite the best deterrent efforts of sentencing Courts and the best warning efforts of the Minister.
I therefore simply cannot accept Professor Coyle’s finding that:
“There is nothing in [the Applicant’s] clinical presentation that remotely suggests he suffers from any disorder or condition that predisposes him to commit any crimes in [sic] or other serious offences in future”.[50]
I cannot do so based on (1) Professor Coyle’s unsubstantiated evidence that the Applicant is “drug-free” and (2) the only thing now dissuading the Applicant from

re-offending is the fear of being removed from Australia and sent to Vietnam.
[50] Ibid, p. 18, para [61].
I respectfully do not think the learned President Margaret McMurdo J was incorrect when Her Honour noted that the Applicant’s absconding while on bail could “… be explained in part by his raging addiction to the drugs the subject of these offences”.[51] There is little or nothing before the Tribunal to demonstrate the Applicant’s issues with illegal drugs and the influence they have on him have been resolved. In those circumstances, Professor Coyle’s assessment that the threat of removal from Australia is the only element generating sufficient fear in the mind of the Applicant to prevent him re-offending in the future cannot be regarded as sound.
[51] Ibid, G02, Attachment B: Supreme Court of Queensland, Order of the Court of Appeal, pp. 41 – 48.
When one has regard to the consistent and escalating seriousness of the criminal history, a conclusion can readily be drawn that were the Applicant to reoffend, the consequences would be serious. Or, put another way, the nature of the consequences of any
re-offending would be of no less severity than the harm already apparent in the history. The Applicant can no longer be said to be a young man who is new to offending. He is an experienced offender. That “experience” is to be found in the consistency and escalating seriousness of his offending. In other words, the “experience” can only be viewed in negative terms. The history confirms that the “experience” has not worked in such a way as to cause the Applicant to modify his behaviour and cease offending.
Having regard to the nature of this past conduct, should he re-offend in a similar manner, I am of the view that the Applicant would pose a very significant risk to individuals in the Australian community. The risk of harm to victims of his unlawful conduct, be they law enforcement officers or members of the Australian community, if repeated, could result in members of the Australian community suffering anything from financial loss to serious physical or psychological injuries or conceivably, death. Taking into consideration the nature of his previous offending, I consider that the potential future harm he may cause to members of the Australian community is very significant.
The likelihood of the person engaging in further criminal or other serious conduct
Paragraph 13.1.2(2)(b) of the Direction requires me to assess the likelihood of the Applicant engaging in further criminal or other serious conduct, taking into account available information and evidence in relation to that risk.
The Respondent has identified five factors that inform the Tribunal of a “moderate to high likelihood of the Applicant re-offending”.[52] I respectfully agree with each of those factors. First, the Applicant has a demonstrated criminal history of repeated and consistent criminal offending across an 18 year period commencing in 1997. As mentioned earlier, the sheer consistency of his offending – be it in the form of actual offending or in serving sentences - has dominated his adult life. His abject refusal to submit to and accept lawful authority is clearly apparent from his history and cannot be denied. His offending against the personal and property rights of others has graduated from low level “person to person” type offending (assault, riotous/threatening behaviour) to breaking and entering dwelling houses with intent to commit an offence and, perhaps most worryingly, possession of a handgun in the milieu of very serious and commercially-oriented drug offending, the totality of which was punished by a custodial term of approximately 15 years and nine months.
[52] Exhibit R1, Respondent’s SFIC, para [22].
Second, despite their best efforts, I respectfully observe that the sentencing Courts have not succeeded in deterring the Applicant from re-offending. To the contrary, one gesture of relatively mild sentencing is met (by the Applicant) with progressively more serious criminal conduct necessitating the imposition of very lengthy custodial terms. None of these sentences have had any deterrent effect on his propensity to offend.
Third, it is one thing to observe that the Applicant has (1) offended; (2) had a punishment imposed upon him and, (3) once that punishment has been served or completed for him to then re-offend. It is quite another thing (and in my view much more serious) to observe that the Applicant has (1) offended; (2) had a punishment imposed upon him and,
(3) while that punishment regime is still current and not completed, for the Applicant to offend during that specific period. In my view, the latter scenario is significantly more serious that the former. The latter scenario is suggestive of an applicant who is significantly more disposed to offending than an applicant in the former scenario.
A cursory examination of the totality of this Applicant’s offending demonstrates it is littered with instances of the latter abovementioned scenario.
Fourth, while the Tribunal concurs with the Respondent’s acknowledgement that the Applicant has participated in various Court ordered and potentially non-Court ordered programmes regarding rehabilitation, his behaviour around drugs and his resistance to drug taking has not been tested in an uncontrolled environment. I have said that the learned President Margaret McMurdo J was most likely correct in identifying the Applicant’s reliance on illegal drugs as one of, if not the most, predominant factors behind his offending. For reasons already stated, it is not possible to positively find that the Applicant is now “drug-free” on the mere say so of the Applicant and on the basis that drugs may be more expensive for him to obtain in custody or immigration detention than in the broader community. I am of the view and find that the Applicant’s issues with illegal drugs have been a primary (if not the primary) source of agitation and instability in his life. His issues with illegal drugs have not been tested in an uncontrolled environment and it would, in my view, be dangerous to make a finding that the Applicant is “drug-free”.
Fifth, the Applicant arranged for a number of lay witnesses to appear on his behalf at the hearing. They included his partner (Ms Melanie Hyland), a long-time family friend
(Mr Andrew Elvin), his brother (Oau Hai Tran) and a business owner, namely, Mr Michael Woodall. Both Mr Woodall and the Applicant’s brother expressed a willingness to employ him were he to be released back into the community. Mr Woodall is in the sliding doors and windows repair business. Given that his business involves access to homes and commercial buildings, he was unequivocal when asked about whether he would employ someone with a criminal history of breaking and entering dwellings. Ultimately,
Mr Woodall said that it is prevailing business conditions, above all else, which dictates whether he could offer the Applicant a job at all.
The Applicant’s brother has been self-employed since May 2017 and has previously worked with the Applicant for about a year making blinds at a factory in Northgate. The Applicant’s brother then went into business on his own working as a sub-contractor with Foxtel involving the installation of cables and other equipment facilitating release of the Foxtel cable TV service. He was asked whether Foxtel would have any issues with him employing someone with a history like the Applicant’s that specifically involved breaking and entering into dwellings for the purposes of committing offences. The Applicant’s brother stated that he did not personally have any concerns about the Applicant completing a Foxtel installation job at a given residence. He did, however, accept that he would have to disclose the Applicant’s criminal history to Foxtel and to otherwise seek their approval for him to employ the Applicant. While not determinative of his evidence, one can have some misgivings about the capacity of the brother’s business to readily employ the Applicant in circumstances where the brother said his business has only ever employed one employee in the three years of the businesses’ existence.
Mr Andrew Elvin is a long-time family friend of the Applicant. His evidence, although well intended and outwardly supportive, cannot be relied upon to any significant extent.
Mr Elvin said that he had worked with the Applicant before and that he knew that when the Applicant was taking illegal drugs, it was very hard to get him to listen to rational advice. Mr Elvin said he was aware of the lengthy and very serious nature of the Applicant’s offending. The essence of Mr Elvin’s evidence, as I understood it, was that he does not think the Applicant will take drugs again. When asked how or why he held that view, he said “I just know”.

As against this finding, it is possible in today’s world which has been made smaller via electronic communication, that the Applicant could have contact with the infant children presumably by SMS or social media. A logical extension of this would involve the introduction and maintenance of visual and real-time contact with the children via Skype and other digital platforms. The extent of such contact may, in future, be conditioned by the terms of any Court orders between the respective mothers and the Applicant governing parenting arrangements for the infant children. Having regard to the expert views of Dr Zuscak, I think it is reasonable to conclude that it is in the best interests of the children to apply this factor (d) in favour of revocation of the decision to cancel the Applicant’s visa.
Factor (e) of paragraph 13.2(4) of the Direction asks whether there are persons who already fulfil a parental role in relation to the children. Clearly, there are. The infant daughter is under the care of her mother from whom the Applicant is, unfortunately, estranged. Dr Zuscak’s comments, again, only relate to the infant son.

Dr Zuscak has observed that the main “parental executive” for the infant son comprises his mother and her parents. Tellingly, Dr Zuscak has noted that the mother’s mental health difficulties, and the burden of care this can place on her parents, would in turn mean that “the parental executive” for the infant son would be “buttressed” by the Applicant once again becoming involved in the infant son’s life. For the purposes of this factor (e), I am of the view that although other persons already fulfil a parental role in relation to the infant son, this factor can nevertheless be applied in a positive way in favour of revocation of the decision to cancel the Applicant’s visa.
Factor (f) of paragraph 13.2(4) of the Direction requires the Tribunal to consider any known views of the children about their separation from the Applicant, having regard to the age and maturity of the children. Once again, the views of Dr Zuscak are very informative. Dr Zuscak opines that the youngest son is keen to resume a relationship with the Applicant and that such a relationship will most likely consist of a shared care arrangement with his mother. According to Dr Zuscak opined that “It is likely” that the infant son will establish a routine of visitation with the Applicant that will consist of one on one time together to re-establish this relationship. Dr Zuscak then expects the relationship to evolve into more integrated involvement with the Applicant’s extended family.
With specific reference to the capacity of the infant son to express those views,

Dr Zuscak thought the infant son did have the capacity to be aware of the likely options available in relation to the Applicant’s involvement with him. Dr Zuscak also thought the youngest son was able to consider the consequences of such an outcome and that he had sufficient capacity and maturity to communicate his preference and that such communication was the result of the infant son’s rational appraisal of such an eventuality. Dr Zuscak considered the infant son’s age and maturity to accord weight to his views. I am of the view that the known views of the infant son are such as to facilitate a positive application of this factor (f) in favour of restoration of the Applicant’s visa status.
Factor (g) of paragraph 13.2(4) of the Direction looks for evidence that the Applicant has abused or neglected the children in any way, including physical, sexual and/or mental abuse or neglect. There is no evidence of deliberate, intentional or wanton abuse of any of his children by the Applicant. Dr Zuscak makes no such finding. This factor therefore has no weight and is not determinative of any finding about Primary Consideration B.
Factor (h) of paragraph 13.2(4) of the Direction looks for evidence that the children have suffered or experienced any physical or emotional trauma arising the Applicant’s conduct. Aside from Dr Zuscak’s abovementioned findings in relation to the infant son regarding factor (c), there is no evidence of any physical or emotional trauma experienced by either or both of the infant children that may be attributable to the Applicant’s conduct. Accordingly, this factor (h) has no weight and is not determinative of any finding about Primary Consideration B.
It is necessary to say something about factors inherent in Dr Zuscak’s report that, in turn, directly impact upon the weight they can carry. As I have observed, Dr Zuscak did not have the benefit of an interview with either the infant daughter or her mother. On one view, the Tribunal is thus limited to hearing only “half of the story” in relation to whether restoration of the Applicant’s visa status is in the best interests of the children. For the purposes of this decision, I am prepared to accept that the positive aspects Dr Zuscak has identified in relation to the infant son resulting in a favourable application of the factors governing application of Primary Consideration B, will have equal prospects of positive application to the infant daughter, were the Applicant afforded the opportunity to re-establish her relationship with her.
The further issue militating against the attribution of a full quota of weight to

Dr Zuscak’s report is the fact that his findings are aspirational and forward-looking. Those findings are reached without the benefit of:
(a)any history or other earlier reference points; and
(b)(the known views of the infant daughter (to the extent she can express them) and her mother.
I must also take into account the possibility that if she were to be interviewed by

Dr Zuscak for present purposes, the infant daughter’s mother could comprehensively debunk and refute any credentials the Applicant may profess about either having been or, in future becoming, a good and responsible father to the infant children. For these reasons, I am of the view that while Dr Zuscak’s report can be positively received by the Tribunal, the factors I have mentioned serve to moderate the weight attributable to it.
Having regard to:
(a)
the evidence as a whole, particularly the independent and expert evidence of

Dr Zuscak about the effect of the children endorsing the Minister’s decision;
(b)the Respondent’s concession that it is in the best interests of the Applicant’s infant children for him to remain in Australia;
(c)
the limitation that, in my view, should be placed on the weight attributable to

Dr Zuscak’s report due to factors I have outlined; and
(d)an application of the factors at paragraph 13.2(4) of the Direction
I am of the view that the best interests of the Applicant’s minor children in Australia does weigh in favour of revocation of the decision to cancel the subject visa. I qualify this finding by saying that the weight attributable to this Primary Consideration B does not outweigh that weight attributable to Primary Consideration A.
Primary Consideration C: Expectations of the Australian community
I turn now to the final primary consideration: the expectations of the Australian community. In making this assessment, paragraph 13.3(1) of the Direction provides that I should consider whether the Applicant has breached, or whether there is an unacceptable risk that he would breach, the trust of the Australian community. I must also have regard to the Government’s views in this respect. Paragraph 13.3(1) of the Direction directs a decision-maker to endorse non-revocation as an appropriate finding simply because the nature of an applicant’s offending is such that the Australian community would expect that they should not hold a visa.
For the purposes of considering the present matter, the essential question with respect to this Primary Consideration C is surely whether the Australian community, as a whole, would expect that a non-citizen with the Applicant’s history of offending and his demonstrated lack of insight into that offending, should retain the right to remain in Australia. Each offender’s criminal history and circumstances of offending is, of course, different. This broadly stated question must be broken down into a series of components so that it is properly understood and can be properly assessed.
To my mind, the question may be stated thus: would the Australian community expect the Applicant to hold a visa to remain in Australia in circumstances where:
·He arrived in Australia in 1978 aged 16 months and has found himself before the criminal courts on a virtually continuous basis from the age of 20 years;
·The frequency and pattern of his offending has caused him to be the subject of the imposition of lawful authority since commencement of his criminal history in 1997 as follows: 1997 (four times),1998, 2002 (twice), 2007 (four times), 2008 (four times), 2009, 2010 (twice), 2013 (four times), 2014 (twice) and 2015;
·He has committed offences in the following areas:
oOffences against the personal and property rights of others (approximately nine offences);
oDrug offences (approximately 17 offences); and
o
Offences relating to a refusal to submit to lawful authority (approximately

16 offences).
·He appears to have been in criminal custody on a continuous basis until 15 January 2018, consequent upon his very serious drug offending. He remained in criminal custody until 15 January 2018 and was then taken into immigration detention where he remains;
·Viewed in totality, for the 18 year period of his criminal history, the sentencing courts have seen fit to impose a cumulative custodial period of 19 years and almost 11 months. As mentioned earlier, the seriousness of his offending has been such that the authorities have considered his offending worthy of head sentences of custodial punishment for about 110% of his 18 year criminal history;
·In June 2011, the Applicant received a letter of warning from the Minister telling him that his continued criminal offending conduct could very well adversely impact upon his migration status in this country, yet he chose to ignore that letter of warning and not just continue his serious offending but his offending escalated in seriousness; and
·Despite the best efforts of Professor Coyle, there is no definitive medical or other independent expert opinion either (1) providing a cogent or rational reason behind his demonstrated propensity to offend; or (2) giving this Tribunal any measure of confidence that the factors causing him to offend have been addressed or are otherwise under control. For reasons I have stated, I consider it unsafe to accept that any inclination or impulse within this Applicant to reoffend has now been removed as a result of the sole factor relating to his possible removal from Australia.
·I am mindful of the elements necessary to be balanced in any proper consideration and application of this Primary Consideration C to a given factual matrix. One must look to the expectations of:
“… the informed, reasonable member of the Australian community, rather than a member of the Australian community who is only prepared to consider the punitive aspects of the power under s 501.”[56]
[56]Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336 at [36] per Deputy President Block.
The application of paragraph 13.3(1) of the Direction has recently been the subject of consideration by Deputy President Forgie of this Tribunal in ETWK and Minister for Immigration and Border Protection [2017] AATA 228 (“ETWK”) at [102] and [103]:
102. …I considered this paragraph in some detail. I will not repeat my analysis but adopt its conclusions which are to the effect that a consideration of what the Australian community expects is now more circumscribed by what is said in the Direction than might have been the case in earlier times. Paragraph 13.3(1) is quite specific in its statement that the Australian community expects noncitizens to obey Australia’s laws while in Australia but leaves open, for example, what is an ‘unacceptable risk’ that non-citizens will breach that expectation or when the nature of the character concerns or offences are such that the Australian community would expect that the person should not continue to hold a visa…
…
103. Although ultimately a matter for judgment, the facts on which that judgment is made must be made on the basis of facts established by the evidence. That evidence will not be limited to what is said in the sentencing remarks. The judgment that is ultimately made by a decision-maker must be able to be explained.
[My underlining]
The circumspect nature of the Australian community’s expectations also seems apparent in the decision of Justice Mortimer in YNQY v Minister for Immigration and Border Protection (“YNQY”):[57]
In substance this consideration is adverse to any Applicant…In particular, the last two sentences of para 13.3 of the Direction suggest the ‘expectations’ about which it speaks are expectations adverse to the position of any Applicant who has failed the character test and has been convicted of serious crimes.
[My underlining]
[57] [2017] FCA 1466 at [76]-[77].
The learned Justice Mortimer went further, and thought the last two sentences of paragraph 13.3 of the Direction:
[76]…[are] not a consideration dealing with any objective, or ascertainable expectations of the Australian community. It is a kind of deeming provision by the Minister about how he or she, and the executive government of which he or she is a member, wish to articulate community expectations, whether or not there is any objective basis for that belief. That is the structure of this part of the Direction.
[77] I do not consider that even if the Applicant is correct to submit that the Tribunal did not undertake the task required of it by the Direction in relation to this consideration, he was deprived of a different outcome because of that failure. It was inevitable that this consideration would weigh against revocation: that is what it is intended to do…
[My underlining]
In Afu v Minister for Home Affairs,[58] Justice Bromwich said:
[85]…The concept of community expectations is not a matter to be measured as though it is a provable fact. It is an assessment of community values made on behalf of that community. That would be so even in the absence of the express terms of Direction 65. However, those express terms put the question beyond doubt. The norm is stipulated, inter alia, in Direction 65…The Tribunal was required to give effect to those norms, which is precisely what it did.
[My underlining]
[58] [2018] FCA 1311 at [85].
The resulting question is whether an informed and reasonable member of the Australian community would consider that the Applicant has been adequately punished by serving repeated custodial terms for his lengthy record of serious offending, such that he should now be allowed to remain in this country.
I cannot come to that conclusion in light of my findings as to:
(i)
The very serious nature of his offending to date and its trend of increasing seriousness. As I have noted earlier, his offending was of moderate seriousness at the commencement of the criminal history but it has, undeniably, escalated into very serious offending across its span of

18 years;
(ii)His demonstrated refusal to accept, respect and submit to lawful authority. This is evident from several aspects of his offending profile:
·         the numerous offences relating to a failure to meet lawful requirements imposed on him;
·         his failure to comprehend any sort of deterrent message sought to be relayed to him by the sentencing Courts and, in a different context, by the Minister in his letter of warning;
·         his readiness to resort to violence be it in the form of a gratuitous attack on tourists enjoying a holiday or in a domestic setting;
·         his failure to moderate his conduct in circumstances where:
(a)infant children call him their father and should rightly expect that he will play some type of meaningful role in their lives;
(b)he has a social network around him that thinks highly of him and would take positive steps to place him in lawful employment; and
(c)he has a loyal, loving and devoted partner whom he has known for 25 years who, despite being aware of his extensive criminal history, hopes that he will emerge from immigration detention and be returned to the Australian community so that they can marry;
·         his apparent impulsivity in taking the “fast money” or easy option, often presented by a criminal enterprise, be it in the form of:
ounlawfully depriving another person of their property by physically crossing the threshold of breaking into that person’s property and stealing from them; and
ohis involvement in ever more very serious drug offending that has an undeniable element of commerciality, organization, forethought and intention to achieve a desired outcome.
(iii)My assessment of a significant risk of substantial harm to the Australian community were this Applicant to re-offend;
(iv)The only independently identified factor militating against the Applicant reoffending is the fear of his being removed from Australia when this factor made no impression on the Applicant when it was put to him in the Minister’s letter of warning in 2011; and
(v)The comments of the learned Deputy President Forgie in ETWK and Mortimer and Bromwich JJ in YNQY regarding the more circumscribed expectations of the community.
Having regard to the totality of the Applicant’s very serious history of offending, together with the moderate to high risk that he will reoffend and the nature of the harm that would be occasioned upon the community were he to reoffend, I find that the Australian community would be of the view that the Applicant has breached the trust they have placed in him to obey Australian laws while in Australia. Accordingly, I find that the Australian community would not consider it appropriate that this Applicant would continue to hold a visa.
As often occurs in hearings like this, the Applicant spoke of being given a second chance to resume his life in Australia. Does he deserve it? The answer to this question depends on the circumstances of the case to be considered in light of the overriding purpose of the legislation.[59]
[59]See Allan and Minister for Immigration and Border Protection [2016] AATA 1077 at [65] per Senior Member Toohey.
The Applicant has been offending for virtually all of his adult life. Aside from the view of Professor Coyle, that the only factor deterring the Applicant from reoffending is the fear of being removed from Australia, there is no indication that the Applicant has developed any insight into his offending, or that he has taken active steps to bring it under control. His capacity to do so remains untested in an uncontrolled environment in the general community.
Looked at longitudinally, his criminal history does not inspire any confidence that he has overcome his impulsivity and readiness to resort to criminal conduct as a primary means of making his way in the world. I am of the view that a significant majority of the Australian community would think likewise. I cannot accept that the Applicant was not aware, for example, of consistent government and local community campaigning against the scourge of illegal drugs upon our community. Similarly, I cannot accept he was not aware of the seriousness and unlawfulness of what he was doing as his criminal activities gradually evolved into his very serious offences involving illegal drugs.
His offending in this country is clearly of a very serious nature. Were he to

re-offend, the risk of harm he would present to the Australian community would be quite significant. I am of the view that the Australian community would consider that this Applicant represents an unacceptable risk of breaching the trust of the Australian community it placed in him when he first came here. The Australian community has afforded him, as it were, two “extra chances” in the forms of: (1) non-custodial and otherwise sentences aimed at deterring him from reoffending and (2) the Minister’s written warning in mid-2011 to cease his offending ways or to face potential adverse consequences for his visa status.

The Applicant has spurned both of these chances and, indeed, committed some of his most serious offences in the respective periods after each abovementioned

“extra chance”.
I therefore do not consider that the Australian community would be prepared to give this Applicant a second chance to remain in Australia and resume his life here.
Having regard to Primary Consideration C, I find that the community’s expectations in respect of this Applicant would endorse a finding of non-revocation of the mandatory visa cancellation. Accordingly, I find that Primary Consideration C weighs heavily in favour of non-revocation.
Other Considerations
It is necessary to look at the other considerations listed at paragraph 14(1) of the Direction. I have considered each of the five stipulated subparagraphs (a), (b), (c), (d) and (e). I address each in turn.
(a) International non-refoulement obligations
There are no non-refoulement obligations that are relevant to the Applicant. This other consideration is not relevant in this case.
(b) Strength, nature and duration of ties
There is a readily made concession by the Minister that both the Applicant, his partner and his family members in Australia will be detrimentally affected by non-revocation of the cancellation of his visa.[60]
[60] Exhibit R1, Respondent’s SFIC, page 12, paragraph [36].
In the Personal Details Form the Applicant completed as part of his response to the Minister’s letter of warning in mid-2011, the Applicant said that his immediate family consists of his father, mother, his three sisters and his brother. His extended family comprises 32 uncles/aunts, 40 nieces/nephews, 200 cousins and four grandparents.[61]
[61] Exhibit R2, Section 501 G Documents, G02, page 191.
This list of relatives seems inconsistent with a later list the Applicant provided in a later Personal Circumstances Form that he completed on 8 July 2017.[62] In that form, the Applicant stated that “All my family is in Australia some in France. I have no family in Vietnam.”[63] According to that form, his immediate family (i.e. his father, mother, three sisters, his brother and his two infant children) all reside in Australia. In terms of his extended family, he said that he has two uncles and two aunts and three cousins who also reside in Australia.[64] In response to the question posed “Please state how many other relatives you have in Australia or overseas?”, the Applicant responded as follows:
·12 uncles/aunts, four of whom reside in France;
·18 nieces/nephews;
·24 cousins, eight of whom reside in France.
[62] Ibid, G02, Attachment I: Personal Details Form, pp 67 – 79.
[63] Ibid, G02, p. 70.
[64] Ibid, G02, p. 70.
Despite the inconsistencies in these respective lists, it is clear that the strength, nature and duration of the Applicant’s ties to Australia are significant. Consistent with paragraph 14.2(1)(b) of this other consideration, those ties favour the Applicant.
That observation must be tempered by the factors appearing at paragraph 14.2(1)(a) of the Direction. Although the Applicant arrived here aged 16 months and did not begin offending until his late teens, his offending conduct spans virtually the entirety of his adult life. It culminates in his conviction and sentencing for various serious drug offences at the end of 2013, which involved the imposition (via an appeal to the Queensland Court of Appeal) of a parole eligibility date of 15 January 2018. His reaching of the parole eligibility date in turn, triggered the intervention of the Minister and resulted in the Applicant’s placement in immigration detention, where he remains.
In the first Personal Circumstances Form (2011), he records his work history as follows:
·     From 2003 to 2008, Sales Manager, Trans Seafoods;
·     From 1999 to 2001, Factory hand, Vann guard Blinds;
·     From 1998 to 2000, Factory hand, Raffels T.S.V;
·     From 1996 to 1999, Factory hand, R.X. Plastics.[65]
[65] Ibid, G02, Attachment AS: Personal Details Form, p. 188.
In his second Personal Circumstances Form (2017), he records his work history as follows:
·     From 2003 to 2010, Manager Sales Assistance, Trans Seafoods;
·     From 2000 to 2001, Factory hand, Van Guard Blinds;
·     From 1999 to 2000, Factory hand, Raffels Pty Ltd;
·     From 1997 to 1999, working at RX Plastics;
·     From 1996 to 1997, Factory hand, Namco Pty Ltd.[66]
[66] Ibid, G02, Attachment I: Personal Details Form, p. 74.
In the first scenario, the Applicant ceases legitimate remunerative work in 2008. In the second, he ceases in 2010. To my mind, the significance of both of these cessation dates is that they coincide with the commencement of the period of his most serious criminal offending.
Thus while it cannot be said that he commenced offending soon after arriving here, he has nevertheless consistently offended (and very seriously so) for virtually the entirety of his adult life in Australia. While I accept that his family and social connections speak well of him, I am hard-pressed to find any evidence of any positive contribution made by the Applicant to the Australian community. Given: (1) that the Applicant has spent all of his adult life in Australia and has been offending for most, if not all, of that adult life and

(2) there is a dearth of evidence pointing to any positive contribution he has made to the Australian community. Therefore, I am of the view that while this Other Consideration

(b) is in his favour, less weight should be allocated to it in view of these two factors.
While this Other Consideration (b) may weigh in favour of revocation, it is outweighed by the primary considerations and the other considerations which favour

non-revocation.
(c) Impact on Australian business interests
I cannot recall any evidence that this consideration is of relevance in determining this application.
(d) Impact on victims[67]
[67]The Tribunal acknowledges that the Applicant has on occasion (see Court Dates 19 April 2002, 20 March 1998 and 30 June 1997) been ordered when sentenced to pay restitution to his victims.
While the material contains sentencing remarks from judicial officers who imposed or reviewed the various sentences imposed upon the Applicant during the span of his criminal history, there are no actual victim impact statements (or equivalent) for any of the people who fell afoul of his very serious conduct.
Such victim impact statements are difficult to obtain because, quite understandably, victims want to put a dreadful experience behind them in order to recover from whatever physical and/or emotional trauma they have suffered as a result of an offender’s unlawful conduct. That said, I cannot envisage a situation where any of the victims adversely affected by any part of the spectrum of the Applicant’s offending would be welcoming of or receptive towards the Applicant’s return to the Australian community.
There can be no question the Applicant has been afforded due procedural fairness when dealt with by all aspects of Australian lawful authority. I do not consider this Other Consideration (d) assists the Applicant. If anything, it weighs slightly against the revocation of the cancellation of his visa.
(e) Extent of impediments if removed
Other Consideration (e) requires a decision-maker to assess the extent of any impediments the Applicant will face if removed from Australia to Vietnam. The enquiry involves ascertaining impediments arising from the Applicant establishing himself and maintaining basic living standards in Vietnam taking into account:
(a)his age and health;
(b)any substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to him in Vietnam.
The Applicant is a 41 year old man who seems fit and well. The only issue that may have adversely affected his health, involves his abuse of illegal substances. While the level of publicly available health care in Vietnam may or may not be of a similar standard to that of Australia, the Applicant will nevertheless have access to the same level of health care as other Vietnamese citizens.
The Applicant acknowledges his Vietnamese heritage but says his grasp of the Vietnamese language is poor and the Vietnamese culture is totally alien to him.[68]While it cannot be denied that the Applicant has spent a significant majority of his life in Australia, it cannot be denied that he is of Vietnamese heritage and, as such, is surely more capable of adapting to life in Vietnam than he would be doing so in a country with which he had no affinity such as Bolivia or Peru, for example.
[68] Exhibit A6, Statutory Declaration of the Applicant sworn 23 October 2018, p. 12, para [109].
The Applicant says that any family members he had in Vietnam are all now deceased and that the only remaining family he has resides in Australia and France. He says he will experience difficulty in finding employment in Vietnam and, as a consequence, will find it difficult to support himself.[69] While that contention is, to an extent, fairly made, the Applicant does have a level of work experience and does have an advanced command of the English language. Although these factors provide no guarantee of employment, one would have thought that a Vietnamese citizen of a relatively young age with very solid English language skills would be able to find employment in Vietnam.
[69] Ibid, p. 12, paras [107], [108] and [110].
The extent of impediments to be faced by the Applicant if removed to Australia and returned to Vietnam is a factor that does carry a measure of weight in favour of revocation. Given the Applicant’s relative youth, work experience, English language skills and Vietnamese heritage, I allocate moderate weight to this Other Consideration (e).
Statelessness
Although not strictly an “impediment” pursuant to Other Consideration (e), the Applicant has raised the issue of statelessness in the event: (1) he does not succeed in this application and (2) he is unable to “prove” that he is entitled to Vietnamese citizenship. The upshot of that scenario, the Applicant contends, could involve him remaining in indefinite detention in Australia.
The evidence around this issue is not clear. First, in the oral evidence adduced before me, several versions of the place and situation of the Applicant’s birth were put to the Tribunal. Variously, the Tribunal was told the Applicant was:
(a)born on the Vietnamese mainland;
(b)born at sea in Vietnamese waters while he and his parents were fleeing Vietnam;
(c)born at sea in another country’s waters while he and his parents were fleeing Vietnam in transit to Australia; and
(d)born on a fishing vessel operated by his parents in Vietnamese waters before the family left Vietnam.
As I best understood the evidence, by the end of the hearing the evidence converged towards scenario (4). In documents previously completed at the request of the Minister, the Applicant has twice nominated his place of birth as Vietnam. He did so in the abovementioned Personal Details Form he completed in mid-2011.[70] He again indicated this in the Personal Details Form he completed in February 2017.[71]
[70] Exhibit R2, Section 501 G Documents, G02, Attachment AS: Personal Details Form, p.187.
[71] Ibid, G02, Attachment I: Personal Details Form, p. 69.
Second, put at its highest, the evidence surrounding the Applicant’s apparent concern about this issue is, to use his own words, “completely hearsay”.[72] According to the Applicant, he:
“….. has been orally advised by Australian Border Force (ABF) that they … have had conversations with the Vietnamese Consulate in Canberra who …. have advised ABF that there are no records of his previous existence in Vietnam and he is completely unknown and no record of birth”.[73]
Before the Tribunal, there is (1) no evidentiary record of any such written communication from the Vietnamese Consulate in Canberra; (2) no oral or written evidence from any Consular official corroborating what the Applicant says ABF told him and (3) no oral or written evidence from any ABF official or representative corroborating what the Applicant says he was told by the ABF.
[72]Applicant’s post-hearing submissions dated 23 November 2018, p. 3, para [14].
[73] Ibid, p. 3, para [13].
An initial observation is that it must surely be open to the Applicant to apply for Vietnamese citizenship in circumstances where both of his parents can demonstrate Vietnamese and Australian citizenship. While the Applicant may assert he is not a citizen of Vietnam, it should also be noted that he has not commenced any process or made any effort to assemble the necessary documentation to verify his capacity to become a Vietnamese citizen. On his own evidence, the Applicant was born in Vietnam and he has produced no evidence to demonstrate any past or present refusal of Vietnamese citizenship.
A further observation is that even if the Applicant were detained for an extended period of time until the issue of his Vietnamese citizenship was resolved, or if it was resolved against the Applicant’s return to Vietnam, it would be open to the Minister to grant a visa pursuant s 195A of the Act to avoid the prospect of indefinite detention. While the Applicant derides this alternative as “…. completely disingenuous and almost ridiculous…..”.[74] It is nevertheless an option open to him.
[74] Ibid, p. 6, para [32].
The Respondent cited the recent authority of Le and Minister for Home Affairs
[2018] AATA 4126 (“Le”).[75] Faced with similar circumstances to those now before the Tribunal, Member Burford said these things:
“205. The Tribunal finds that the Vietnamese law clearly contemplates a process for verifying the nationality of persons in the Applicant’s circumstances. The outcome of the process must depend on the individual case. It has not been tested in the Applicant’s case.
…..
209. The Tribunal accepts that there is a degree of uncertainty as to the outcome of the process of registering for recognition of Vietnamese citizenship. There is also uncertainty as to how long the process would take, though the Tribunal notes that the Law itself contains timeframes for processing which do not appear excessive. The Tribunal does not accept however that there is evidence to support the Applicant’s claim that the outcome will necessarily be that he will be refused recognition of his Vietnamese citizenship and not issued with a passport or have a right of return and residence. In such circumstances, it is merely speculation to say that the Applicant will be indefinitely detained if the visa cancellation is not revoked and that affects the weight to be given to this consideration.
210. The Tribunal regards that the relevant consideration raised in the context of the question of the Applicant’s Vietnamese nationality is whether or not there is a risk that the Applicant would be indefinitely detained in immigration detention. Having regard to all of the material before it, the Tribunal finds that while there is a risk that the Applicant will be detained for a period while his application for recognition of Vietnamese nationality is processed, there is a low risk that such detention would become permanent.”[76]
[My underlining].
[75] Per Member Burford.
[76] Le and Minister for Home Affairs [2018] AATA 4126, paras [205], [209] and [210].
Applying Member Burford’s comments to the present application, it is reasonable to assume that there will be a certain time frame involved in processing the Applicant’s Vietnamese citizenship. However, there is no evidence before this Tribunal that the Applicant will be refused recognition of his Vietnamese citizenship, apart from the hearsay evidence apparently emanating from an unknown ABF official. I therefore agree with the findings of Member Burford such that any contention by this Applicant that he will be indefinitely detained if the visa cancellation is not revoked, goes no further than the realm of mere speculation.
As was found in Le, I likewise consider that while there is a risk of the Applicant being detained pending resolution of his application for Vietnamese nationality, there is a low risk that such detention would become permanent.
While the prospect of indefinite detention for any non-citizen is not something to be contemplated lightly, the weight attributable to this additional statelessness factor is, to my mind, measured by the level of speculative assertion behind it when compared to an assessment of the risk that such detention would become permanent. Applied to the present facts, I am of the view that the consideration merits some weight but not such as to be determinative of this application.
Summary of Other Considerations
With reference to these Other Considerations, I am of the view that to the extent that any of them may weigh in favour of revoking the mandatory visa cancellation decision, they are outweighed by Primary Considerations A and C, which heavily weigh in favour of non-revocation. The application of the Other Considerations in the present matter can be summarised as follows:
(a)International non-refoulement obligations: not relevant;
(b)Strength nature and duration of ties: moderately weighs in favour of the Applicant;
(c)Impact on Australian business interests: not relevant;
(d)Impact on victims: weighs, if at all, slightly against the Applicant;
(e)Extent of impediments if removed: moderately weighs in favour of the Applicant.
CONCLUSION
There can be no doubt that on the basis of his offending, the Applicant does not pass the “character test” as defined in s 501(6) of the Act. In then considering whether there is another reason to exercise the discretion afforded by s 501CA(4) of the Act to revoke the mandatory visa cancellation decision, I have had regard to the considerations referred to in the Direction.
Primary Considerations A and C weigh heavily in favour of non-revocation. They both outweigh Primary Consideration B, which does not favour non-revocation. I do not consider that any of the Other Considerations,[77] alone or combined with each other and/or Primary Consideration B, assist the Applicant to any determinative extent, certainly not to the extent that they would outweigh the Primary and Other Considerations which favour non-revocation.
[77]Including the issue of statelessness, although it is not, strictly speaking, expressly mentioned in any of the Other Considerations.
Accordingly, I find that there is not another reason why the cancellation of the Applicant’s visa should be revoked. It follows that I should not make an order revoking the cancellation of his visa.
DECISION
For the reasons outlined above, I affirm the decision under review.

I certify that the preceding 178 (one hundred and seventy-eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis

..............................[SGD]..........................................
Associate
Dated: 29 November 2018

Date of hearing: 20 November 2018

Date final submissions received: 23 November 2018

Advocate for the Applicant: Mr Markwell

Solicitors for the Applicant: WJ Markwell & Associates

Advocate for the Respondent: Ms Crawford

Solicitors for the Respondent: Clayton Utz

[2018] AATA 4454

29 November 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction

Remedies

Jurisdiction

Date of hearing:	20 November 2018
Date final submissions received:	23 November 2018
Advocate for the Applicant:	Mr Markwell
Solicitors for the Applicant:	WJ Markwell & Associates
Advocate for the Respondent:	Ms Crawford
Solicitors for the Respondent:	Clayton Utz